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So this is a little bothersome.  The Escapist has an article about a new Sony patent application, if granted could make playing used games on future Sony consoles a thing of the past.  This new Sony patent essentially places an RF tag on a disk, which interacts with the console to create a unique DiskID-Console/AccountID that the system then stores as a legitimate combination.  In the future, if you were to sell the game to someplace like GameStop, another user would buying it and trying to play it would have an invalid DiskID-Console/AccountID combo, and be prevented from playing the game.

Keep in mind, this is just an application — the patent hasn’t been awarded yet, and Sony has said nothing about the actual inclusion of the technology on any platform.  In fact, as The Escapist article says, Sony has held similar patents since 2006 and has been sitting on them since then.  It’s entirely possible they will do the same thing with this patent should it be awarded.  However, with the recent focus on the used game market as “losing” the games industry billions of dollars (their words, not mine) a year, Sony might be more tempted to use include something like this in new gen console.

If they do, it’s unlikely to be an easy sell.  The legality of the used game market is still in somewhat murky waters, for the initial publishers that is.  Currently, console games are covered by the First Sale Doctrine, which states that the consumer, after buying any item is free to do whatever they would like with the item  or content (barring reproduction of the item in question).  First Sale Doctrine not only governs used game sales, but also rentals, library lending, gift-giving, etc.  Digital media are still covered under First Sale Doctrine, thus video games are still covered.  However, using the technology described in this patent could (and likely would) be seen as an attempt to circumvent First Sale Doctrine when it comes to console video games (digital distribution has yet to be vetted against First Sale Doctrine).

If the new Sony patent is awarded and they chose to use it in their next generation system, they stand to lose a lot of good will and take a lot of heat from consumers.  More than that, implementation of the technology would almost guarantee litigation, but of a wider scope.  The current defense (untested at the moment) against Digital Media such a video games, digital music, eBooks and the like of not being covered under First Sale Doctrine is that the consumer isn’t actually buying the content itself, only a license for view/use the content, and that the licenses are all non-transferable–they are only good for a single person.  As to whether that flies with the current state of Terms of Use and License agreement that often require a lawyer to translate (and I only wish I was kidding), it’s unclear how many people understand that they are buying a license to the content, not the content itself.  And as such, they have so no rights regarding it.  If a publisher decides you shouldn’t have a license to something anymore, they can revoke that license and they are under not obligation to refund you for it.

Only time will tell what Sony will do with this patent, if awarded.  But the issue of how digital media is consumed, owned, and distributed is on it ways to Supreme Court, and sooner rather than later.  It will be an interesting case study, to be sure.

The Escapist – Sony Patents a Way to Sabotage Used Game Market

FreePatents Online – ELECTRONIC CONTENT PROCESSING SYSTEM, ELECTRONIC CONTENT PROCESSING METHOD, PACKAGE OF ELECTRONIC CONTENT, AND USE PERMISSION APPARATUS